Research › Search › Judgment

Orissa High Court · body

2022 DIGILAW 283 (ORI)

Prasanta Ku. Acharya v. State

2022-07-14

V.NARASINGH

body2022
JUDGMENT : V. Narasingh, J. 1. The petitioner was one of the applicants along with Opposite Party No.4 for the post of Multipurpose Health Worker (Male) under NVBDCP Project in the District of Keonjhar. Being aggrieved by the order dated 29.01.2014 at Annexure-8 rejecting his representation for consideration in UR (PH category) and appointment of Opposite Party No.4, in terms of the provisional list dated 29.05.2013, at Annnexure-6, this Writ Application has been filed. 2. It is submitted by the learned counsel for the petitioner pursuant to the “form of application” provided for engagement as Multipurpose Health Worker (Male), the petitioner applied as a physically handicapped candidate having 45% disability. 3. Along with said format for application the petitioner submitted the disability certificate and other educational certificates. On consideration of the same the selection committee arrived at the conclusion that the petitioner has secured 61.88% on academic scale of evaluation and his physical disability is 45%. The name of the petitioner appears at Serial No.77 of provisional list of candidates at Annexure-5 and that of Opposite Party No.4 at serial No.75 and total mark secured was 60.24 and his physical disability was to the extent of 40%. 4. It is on record that the name of the petitioner along with Opposite Party No.4 and two others were sent for medical examination to the CDMO, Cuttack for evaluation of their percentage of disability. 5. But, it is submitted by the learned counsel for the petitioner, that surprisingly name of the petitioner was included in the reject list treating him to have applied under “UR” (unreserved) category without treating him as physically handicapped (PH). The noting in the rejection column against the name of the petitioner is quoted hereunder; “Rejected due to over age as applied in UR category” 6. Ventilating his grievance the petitioner made a representation dated 11.07.2013 to the CDMO Keonjhar and because of non-consideration of the same he approached this Court by filing W.P.(C) No.28183 of 2013. By order dated 09.01.2014 this Court directed the Opposite Party No.3 CDMO Keonjhar to consider the grievance of the petitioner and disposed of his representation. 7. And, on consideration thereof the impugned order rejecting the petitioner’s claim at Annexure-8 dated 29.01.2014 was passed. 8. By order dated 09.01.2014 this Court directed the Opposite Party No.3 CDMO Keonjhar to consider the grievance of the petitioner and disposed of his representation. 7. And, on consideration thereof the impugned order rejecting the petitioner’s claim at Annexure-8 dated 29.01.2014 was passed. 8. The reasons of rejection of the petitioners representation culled out from such rejection order is extracted hereunder for ready reference; xxxxx “ On scrutiny of your application form it was noticed that you have applied for UR category and accordingly you have also registered your name in UR category in registration sheet for UR category (Photocopy Annexed) As per the decision of the selection committee your candidature was rejected due to overage considering in UR category, as the age limit is 32 years for unreserved category and your DOB as per HSC certificate is 07.08.1979 (Photocopy Annexed). In obedience to the direction of the Honourable High Court in the WP(C) No.28183 of 2013 on 10.01.2013 your application for consideration in UR(PH) category has not been accepted.” x x x x x 9. It is evidently clear on a bare perusal of the order of rejection that the petitioner was treated as one under the unreserved (UR) general category and not as a physically handicapped (PH) candidate and as such his candidature was rejected as he was over aged for UR category. 10. It is submitted by the learned counsel for the petitioner that on a bare perusal of Annexure-1 application format, it can be seen that the same provided for reservation for PH, Ex-Service man and Sports persons as per the ORV Act and Rules. 11. Counter affidavit has been filed by the Opposite Party No.3 CDMO enclosing copy of the application submitted by the petitioner. 12. Against serial No.7 of the application, one is required to mention his caste and against the same admittedly the petitioner has written “Bramin (GEN)” and it is also further submitted that the Opposite Party No.4 has mentioned physically handicapped (PH) category specifically in the application form and as such the petitioner was not considered as physically handicapped candidate whereas Opposite Party No.4 was treated as physically handicapped. Since the petitioner was treated as general candidate and admittedly being over aged for a UR (GEN), his candidature was not considered. 13. Since the petitioner was treated as general candidate and admittedly being over aged for a UR (GEN), his candidature was not considered. 13. It is stated that his candidature was rightly ignored and as such it is submitted that the writ petition does not merit consideration of the Court and is liable to be rejected as, there is no irregularity by the authorities in not treating the petitioner as a physically handicapped candidate. 14. The learned counsel for the State has produced the record relating to the selection and on verification of the same it is seen that the petitioner has submitted certificates indicating his disability. 15. The learned counsel for the petitioner submitted that it is clear on a bare perusal of the application format at Annexure-1 provided by the authorities that the same never contemplated indication of the physical status. 16. The same is not disputed by the learned counsel for the State with his usual fairness. 17. For the purpose of appreciation, the relevant extract of the Application format admittedly provided by the authorities is stated herein below; “RECRUITMENT OF MULTI PURPOSE HEALTH WORKER (MALE) UNDER NVBDCP Project ON CONTRACTUAL BASIS x x x x x x (There will be reservation for PH, Ex-serviceman & Sports person as per the ORV Act & Rules) Application for the Post of MPW (Male) Contractual under NVBDCP Project 1. Post Applied for : 2. Name of the Candidates in full : (In Block Letter) 3. Father’s Name : 4. Present Address : 5. Permanent Address : 6. Date of Birth : 7. Caste : Affix a recent pass post size photograph x x x x x x Signature of the Candidate” Sd/- 18. On scrutiny of the format at Annexure-1 (page 7) extracted herein above of the Writ Petition, it is seen that in fact the application never required physical status to be mentioned and therefore, the rejection of the petitioners claim on the ground of non-indication of the physical disability in the application format, by the selection committee is ex-facie outcome of gross non-application of mind and the petitioner ought to be treated as a physically handicapped (PH) person. 19. 19. On the basis of records produced and on evaluation of inter se merit of the petitioner vis-à-vis Opposite Party No.4 who also belongs to general (PH Category) it is seen that on the basis of education qualifications petitioner is assessed to have secured 61.88% and his disability has been assessed at 45% and that of Opposite Party No.4 is 60.24% (academics) and his physical disability has been assessed as 40%. 20. There is force in the submission of the learned counsel for the petitioner that on comparison of inter se merit both on account of educational qualification and physical disability the authorities have committed gross illegality in rejecting the claim of the petitioner as non PH (GEN) and in accepting that of Opposite Party No.4 in preference to him. 21. Learned counsel for the State has produced the records of selection in terms of the earlier direction passed by this Court. The format for application at Annexure-1 is the same as in the original record. The ground on which the learned counsel for the State places reliance has been stated in paragraph-6 and 7 of the counter affidavit which is extracted hereunder for convenience of ready reference; x x x x x “6. That in reply to the averments made in Paragraph-7 of the writ petition, the deponent humbly submits that the petitioner secured 61.88% of marks as a general candidate. Although in its application form the petitioner had not mentioned his category as Physical Handicapped. In the provisional list it was wrongly mentioned General Physical handicapped, subsequently after verification of his application form his case was considered under unreserved category. The Opp. Party No.-4 Raghunath Mishra had applied under Physical Handicapped category specifically mentioning in his application form and therefore his case was considered under Physical Handicapped category. 7. That in reply to the averments made in Paragrap-8 to 11 of the writ petition, the deponent humbly submits that the representation was considered and rejected as he had applied for consideration under general category and his case was considered under general category. He was over aged for consideration under UR category.” x x x x x 22. 7. That in reply to the averments made in Paragrap-8 to 11 of the writ petition, the deponent humbly submits that the representation was considered and rejected as he had applied for consideration under general category and his case was considered under general category. He was over aged for consideration under UR category.” x x x x x 22. On going through the recitals of the counter affidavit it can be seen that sole ground on which the candidature of the petitioner was rejected is that he was considered under the UR category and it is further submitted that since the petitioner was ineligible to be considered under the PH category his mere inclusion in the provisional list does not confer any vested right for appointment. 23. Law is no longer res-integra that mere inclusion in the selection list does not confer any vested right but such time tested proposition has to be examined on the touchstone of facts in each individual case. 24. In the case at hand as already noticed, it can be seen that admittedly the format which was provided, admittedly by the authorities themselves for selection for recruitment of Multipurpose Health Worker (Male) under NVBDCP project never contemplated any declaration by the candidate relating to his physical disability. 25. The stand of the Opposite party is that since the Opposite Party No.4 had mentioned physically handicapped against the Serial No.7 ‘caste’ it ipso facto entitles him to claim preference vis-à-vis petitioner. 26. Through on evaluation of comparative merit as has been done in the preceding Paragraph, the petitioner has been found to be more meritorious and so far as the physical disability is concerned, the petitioner’s percentage of the disability is also more. 27. It is trite law that the selection committee cannot alter the terms of advertisement. Hence the exercise of power of the authority in rejecting the application relying on the grounds for non-mentioning in the application format regarding his physical disability does not stand to reason and smacks of arbitrariness. 28. Though notice has been served on the opposite Party No.4 and despite of counter affidavit there was no appearance on behalf of the said Opposite Party when the matter is called. In the counter affidavit filed by the Opposite Party No.4, he has reiterated the stand taken by the authority. 29. 28. Though notice has been served on the opposite Party No.4 and despite of counter affidavit there was no appearance on behalf of the said Opposite Party when the matter is called. In the counter affidavit filed by the Opposite Party No.4, he has reiterated the stand taken by the authority. 29. Paragraph-4 of the counter affidavit filed by the said Opposite Party is extracted her under for ready reference; xxxxx “4. That the petitioner in his application for the post had not mentioned about his status as a physical Handicapped candidate, he has applied against unreserved category. In the registration sheet of candidates attended in walk-in-interview the petitioner signed against the category unreserved. In view of his specific declaration and application against unreserved category his case was considered against unreserved category. Therefore after selection is made the petitioner can’t claim a comparative assessment with this deponent who was considered against physical Handicapped quota. A copy of the application form submitted by the deponent is filed here with as Annexure-A/4.” x x x x x 30. On a conspectus of materials on record and on evaluation of comparative merit of the petitioner vis-a-vis Opposite Party No.4 both admittedly belonging to physically handicapped categories, this Court is of the considered opinion that the action of authority in rejecting the candidature of the petitioner is liable to be quashed and accordingly the order at Annexure-8, rejecting representation of the petitioner and the order dated 02.07.2013 selecting Opposite Party No.4 as MHW (Male) at Annexure 6 is hereby set-aside and the authorities are directed to consider the claim of the petitioner for appointment as Multipurpose Health Worker under the PH category within a period of four months from the date of receipt/production of copy of this order if there is no other legal impediment. 31. The writ petition accordingly stands disposed of. 32. There shall be no order as to cost.